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EXHIBIT 10.26
EXECUTIVE EMPLOYMENT AGREEMENT
This Executive Employment Agreement (the "Agreement") is entered into
by and between Platinum Software Corporation (the "Parent"), a Delaware
corporation, and Xxxxxx X. Xxxxxxx ("Executive"), effective as of October 13,
1998.
WHEREAS, Parent, Zoo Acquisition Corp., a Delaware corporation and a
wholly owned subsidiary of Parent ("Merger Sub"), and DataWorks Corporation, a
Delaware corporation (the "Company"), have entered into an Agreement and Plan of
Reorganization dated as of the date hereof (the "Reorganization Agreement"),
which provides (subject to the conditions set forth therein) for the merger of
Merger Sub with and into the Company (the "Merger") (capitalized terms used but
not otherwise defined in this Agreement have the meanings assigned to such terms
in the Reorganization Agreement);
WHEREAS, as of the Closing Date, Parent desires to employ Executive
and to assure itself of the continued services of Executive and Executive
desires to be employed by the Parent, under the terms and conditions herein; and
WHEREAS, the Company and Executive desire to terminate the terms of
Executive's existing Employment Agreement dated December 19, 1997, between
Executive and the Company (the "Prior Agreement").
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
1. EMPLOYMENT BY THE PARENT. Effective as of the Closing Date, the
Parent hereby employs Executive to render full-time services to the Parent as
its Vice Chairman. Executive shall have responsibilities, duties and authorities
that are customarily associated with the position of Vice Chairman, and such
other duties as mutually agreed upon by Executive and the Parent.
2. TERMINATION OF PRIOR AGREEMENT. Effective as of the Closing Date,
the Prior Agreement shall be terminated and be of no further force or effect.
3. TERM OF EMPLOYMENT, CONSULTING SERVICES, AND AGREEMENT. The term of
Executive's employment under this Agreement shall commence as of the Closing
Date and shall terminate on the first anniversary thereof, or such earlier or
later date upon termination of Executive's employment by either party in
accordance with Section 5. As used herein, "Term" refers to the period during
which Executive serves as an employee of or consultant to the Parent pursuant to
the terms of this Agreement. Notwithstanding anything else herein to the
contrary, this Agreement shall terminate and be of no force or effect in the
event of termination of the Reorganization Agreement pursuant to its terms.
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4. COMPENSATION.
4.1 SALARY. The Parent agrees to pay Executive compensation
(including base salary, bonuses and equity compensation, if any) as an employee
of the Parent as provided in this Section 4, or as otherwise mutually agreed in
writing between the Parent and Executive. Executive's annualized base salary
("Base Salary") as of the Closing Date shall be $450,000, which shall be paid
pursuant to Parent's normal payroll practices. In addition, subject to the terms
of the following paragraph, Executive shall be entitled to a fiscal year 1999
bonus (and an annual bonus for fiscal years subsequent to fiscal year 1999,
subject to new calculations of revenue and net income projections consistent
with any new calculations used with respect to the Parent's other executive
officers) pursuant to Exhibit A, determined in accordance with such
determinations with respect to the Parent's other executive officers.
Executive will be paid bonuses concurrently with the payment of
bonuses to other of Parent's executive officers in accordance with Exhibit A.
Executive's bonus payments will be pro-rated as appropriate for any partial-year
of service as an employee of Parent during any of Parent's fiscal years, except
no bonus payments will accrue or otherwise be payable for any portion of the
Term that is prior to January 1, 1999, and in the event the Term begins
subsequent to January 1, 1999 Executive's bonus for fiscal 1999 shall
nevertheless be calculated as if Executive was an employee of the Parent
beginning January 1, 1999. If Parent changes its fiscal year to end on other
than June 30, then Exhibit A shall be deemed amended appropriately to account
for such change (subject to new calculations of revenue and net income
projections consistent with any new calculations used with respect to the
Parent's other executive officers).
4.2 STOCK OPTIONS. Effective as of the Closing Date, the Parent
shall grant to Executive an option to purchase up to 375,000 shares of Common
Stock of the Parent pursuant to the form of option agreement attached hereto as
Exhibit B (the "Option") and consistent with option agreements with other
executive officers of Parent. Notwithstanding any contrary term contained in
Exhibit B, however, the Option shall: (i) have an exercise price equal to the
fair market value of the Common Stock of Parent on the date of grant; (ii) vest
as to 125,000 shares on each of the first, second and third anniversaries of the
Closing Date, but such vesting, along with the vesting (as otherwise governed by
the terms of the plan or agreement under which they were granted and/or vesting
was determined) of all other options to acquire Company Common Stock which are
held by Executive immediately prior to Closing (a) shall be accelerated in
certain instances as provided in Section 5.4, (b) shall continue vesting
following termination of employment for so long as Executive shall provide
consulting services (or be deemed to be providing consulting services in the
event of death or disability of Executive as provided in Section 5.3) to the
Parent hereunder, and (c) such vesting shall terminate in the event of
Executive's termination for Cause.
4.3 BENEFITS; REIMBURSEMENT OF EXPENSES. While an employee of
Parent, Executive shall be eligible to participate in any incentive plan, stock
award plan, bonus, participation or extra compensation plan, pension, group
health, disability and life insurance plan or other benefit programs which the
Parent provides for its executives generally. Executive shall be entitled to
reimbursement of out of pocket expenses in accordance with Parent's policies,
applied to its executive officers generally, whether Executive is an employee or
consultant hereunder.
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5. TERMINATION OF EMPLOYMENT; CONSULTING COMMITMENT. Subject to the
following provisions of this Section 5, notwithstanding the employment term
described in Section 3 hereof, the Parent and Executive shall have the right to
terminate Executive's employment at any time for any reason whatsoever, with or
without Cause (as defined below). The provisions of this Section 5 shall survive
any termination of Executive's employment.
5.1 PARENT-INITIATED TERMINATION WITHOUT CAUSE.
(a) Subject to Section 5.4 below, in the event the Parent
terminates Executive's employment without Cause and subject to (i) the execution
by Executive of the release attached hereto as Exhibit C and (ii) the expiration
of the seven (7) day revocation period provided for in such release during which
such release shall not have been revoked (collectively, the "Release
Condition"), Executive shall thereafter serve as a consultant to Parent pursuant
to Section 5.6, and the Parent shall pay, pursuant to COBRA or if COBRA coverage
is not available, coverage that is COBRA comparable, all costs (excluding
Execucare) associated with the continuation of coverage under the Parent's group
health plan(s) for the period following termination until the date that
Executive ceases to provide services as a consultant hereunder. Such continuing
coverage shall provide for the same terms under which Executive, Executive's
spouse, and Executive's dependents were covered immediately prior to
termination. Executive's compensation and benefits as an employee of the Parent
shall otherwise cease as of such termination date.
(b) For purposes of this Agreement, "Cause" shall mean (a)
willful breach or habitual neglect of Executive's duties hereunder and failure
to remedy such breach or neglect within 30 days after written notice to
Executive thereof, (b) material breach by Executive of his Noncompetition
Agreement entered into with Parent in connection with the Merger (provided that
any disagreement with respect to such breach has been resolved in accordance
with Section 7 hereof), or (c) misconduct, including, but not limited to: (i)
conviction of any felony or of any crime involving moral turpitude or
dishonesty; (ii) participation in any fraud against the Parent or any parent or
subsidiary of Parent; (iii) Executive's repeated insubordination or refusal to
comply with the reasonable request of the Parent's Board of Directors (the
"Board") relating to the scope or performance of Executive's duties; or (iv)
conduct by Executive which in the good faith and reasonable determination of the
Board demonstrates Executive's gross unfitness to serve.
5.2 PARENT-INITIATED TERMINATION FOR CAUSE. In the event
Executive's employment is terminated by the Parent or its successor at any time
for Cause, Executive's compensation, benefits and option vesting will
immediately cease in their entirety, and Executive shall not be entitled to any
severance or other benefits.
5.3 EXECUTIVE-INITIATED VOLUNTARY TERMINATION; DISABILITY OR
DEATH. Executive may voluntarily terminate his employment with the Parent or its
successor at any time by giving the Board thirty (30) days' written notice. In
the event Executive so terminates his employment with the Parent or its
successor, Executive shall thereafter serve as a consultant to Parent pursuant
to Section 5.6, and the Parent shall pay, pursuant to COBRA, or if COBRA
coverage is not available, coverage that is COBRA comparable, all costs
(excluding Execucare) associated with the continuation of coverage under the
Parent's group health plan(s) for the
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period following termination until the date that Executive ceases to provide
services as a consultant hereunder. Such continuing coverage shall provide for
the same terms under which Executive, Executive's spouse, and Executive's
dependents were covered immediately prior to termination. Executive's
compensation and benefits as an employee of the Parent shall otherwise cease as
of such termination date. Notwithstanding anything in this Agreement to the
contrary, in the event Executive dies or becomes permanently disabled (as
defined in Section 22(e)(3) of the Internal Revenue Code) while an employee of
the Parent, such event will be deemed a termination of Executive's employment
pursuant to this Section 5.3, and Executive or Executive's estate, as
appropriate, will be entitled to all consulting fees and continuation of vesting
contemplated by Section 5.6 as if Executive provided consulting services
pursuant to Section 5.6 for the entire Consulting Period (as defined below), and
the other benefits described above shall inure to Executive's successors.
5.4 TERMINATION FOLLOWING CHANGE IN CONTROL.
(a) In the event that, at the time of or within twelve (12)
months following the occurrence of a Change in Control (as defined below), (i)
the Parent or its successor terminates Executive's employment without Cause or
(ii) Executive voluntarily terminates his employment for any reason or for no
reason, then, in either case, in lieu of the provisions of Sections 5.1 and 5.3,
following such termination and subject to the Release Condition, (A) Executive
shall thereafter serve as a consultant to Parent pursuant to Section 5.6; (B)
the Parent or its successor shall pay, pursuant to COBRA, or if COBRA coverage
is not available, coverage that is COBRA comparable, all costs (excluding
Execucare) associated with the continuation of coverage under the Parent's group
health plan(s) for the period following termination until the date that
Executive ceases to provide services as a consultant hereunder; and (C) the
vesting and exercisability of any and all options then owned by Executive to
purchase shares of the Parent's Common Stock shall immediately accelerate in
full and become fully vested and exercisable otherwise in accordance with their
terms.
(b) "Change in Control" shall mean the occurrence of any of
the following:
(i) Any "person," as such term is used in Section 13(d)
and 14(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act") (other than the Parent, a Parent subsidiary, or a Parent employee benefit
plan, including any trustee of such plan acting as trustee) is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly
or indirectly, of securities of the Parent (or a successor to the Parent)
representing fifty percent (50%) or more of the combined voting power of the
then outstanding securities of the Parent or such successor; or
(ii) At least a majority of the directors of the Parent
constitute persons who were not at the time of their first election to the
Board, candidates proposed by a majority of the Board of Directors in office
prior to the time of such first election; or
(iii) A merger or consolidation in which the Parent is
not the surviving entity, except for a transaction, the principal purpose of
which is to change the state in which the Parent is incorporated; or
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(iv) A sale, transfer or other disposition of assets
involving fifty percent (50%) or more in value of the assets of the Parent; or
(v) The dissolution of the Parent, or liquidation of
more than fifty percent (50%) in value of the Parent; or
(vi) Any reverse merger in which the Parent is a
surviving entity but in which securities possessing more than fifty percent
(50%) of the total combined voting power of the Parent's outstanding securities
are transferred to a person or persons different from the persons holding those
securities immediately prior to such reverse merger.
5.5 CERTAIN REDUCTIONS IN PAYMENTS.
(a) In the event that the benefits under this Agreement,
when aggregated with any other payments or benefits received by Executive, or to
be received by Executive, would (i) constitute "parachute payments" within the
meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the
"Code"), and (ii) but for this provision, would be subject to the excise tax
imposed by Section 4999 of the Code or any similar or successor provision (the
"Excise Tax"), then Executive's benefits shall either be (A) delivered in full
or (B) delivered to such lesser amount or degree as would result in no portion
of such benefits being subject to the excise tax under Section 4999 of the Code,
whichever of the foregoing amounts, taking into account the applicable federal,
state and local taxes and the Excise Tax, results in the receipt by Executive on
an after-tax basis, of the greatest amount of benefits, notwithstanding that all
or some portion of such benefits may be subject to the Excise Tax.
(b) Unless Parent and Executive otherwise agree in writing,
any determination required under this Section shall be made in writing by the
Parent's primary independent public accounting firm (the "Accountant's), whose
determination shall be conclusive and binding upon Executive and Parent for all
purposes. For purposes of making the calculations required by this Section, the
Accountants may make reasonable assumptions and approximations concerning
applicable taxes and may rely on reasonable, good faith interpretations
concerning the application of Sections 280G and 4999 of the Code. Parent and
Executive shall furnish to the Accountants such information and documents as the
Accountants may reasonably request in order to make its determination under this
Section. Parent shall bear all costs the Accountants may reasonably incur in
connection with any calculations contemplated by this Section.
5.6 CONSULTING COMMITMENT.
(a) Executive shall, as provided in this Section 5.6, serve
as a consultant to Parent during the Consulting Period in the event of
Executive's termination of employment pursuant to Section 5.1, 5.3 or 5.4 above.
The "Consulting Period" (i) in the event of termination of Executive's
employment pursuant to Section 5.1 or 5.4 above shall be from the date of such
termination until the date that is the later of (x) the third anniversary of the
Closing Date and (y) the date that is two (2) years following such termination,
and (ii) in the event of termination of Executive's employment pursuant to
Section 5.3 above shall be from the date of such termination until the date that
is two (2) years following such termination.
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(b) The Parent shall be entitled to require the Executive to
be available to render consulting services up to seventy-five (75) hours per
month, at times mutually agreed upon from time to time by Executive and the
Parent. Executive shall perform such services in San Diego County, California,
or such other place as may be mutually agreed upon in writing by Executive and
the Parent.
(c) In exchange for Executive's availability, the Parent
shall pay base consulting fees at a rate of $450,000 per year payable in equal
installments on dates coinciding with salary payments made to the Parent's other
executive officers, with payment for any partial pay period to be prorated
(based on the number of days during the Consulting Period in such pay period
relative to the number of days in such pay period). In addition, the Parent
shall pay "bonus consulting fees" for each fiscal year of the Parent in
accordance with Exhibit A and Executive shall continue options vesting pursuant
to Section 4.2, as if Executive were still a full-time employee of the Parent
(including with respect to partial-year service). If the Parent determines that
it is obligated to do so, it shall be entitled to withhold from the Executive's
consulting compensation such amounts as may be required by tax or other
government authorities. Notwithstanding anything in this Agreement to the
contrary, in the event Executive dies or is permanently disabled (as defined in
Section 22(e)(3) of the Internal Revenue Code) while a consultant of the Parent
pursuant to this Section 5.6, Executive or Executive's estate, as appropriate,
will be entitled to all consulting fees and continuation of option vesting
contemplated by Section 4.2 as if Executive provided consulting services
pursuant to Section 5.6 for the entire Consulting Period, and the other benefits
described above shall inure to Executive's successors.
(d) Executive shall perform such consulting services as an
independent contractor.
5.7 BREACH OF NONCOMPETITION AGREEMENT. Notwithstanding anything
else herein to the contrary, in the event Executive materially breaches his
Noncompetition Agreement entered into with the Parent in connection with the
Merger, the Parent may terminate Executive's employment with the Company and
Executive shall not provide consulting services to the Company hereunder; and as
a result the Parent shall have no obligation to pay Executive hereunder for
subsequent services and Executive's options to purchase shares of Parent's
Common Stock will immediately cease to vest.
6. NOTICES. Any notice which the Parent is required or may desire to
give to Executive shall be given by personal delivery, facsimile or registered
or certified mail, return receipt requested, addressed to Executive at the
address of record with the Parent, or at such other place as Executive may from
time to time designate in writing. Any notice which Executive is required or may
desire to give to the Parent hereunder shall be given by personal delivery,
facsimile or by registered or certified mail, return receipt requested,
addressed to the Parent at its principal office, or at such other office as the
Parent may from time to time
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designate in writing. The date of personal delivery, facsimile or mailing any
such notice shall be deemed to be the date of delivery thereof.
7. CONFIDENTIAL AND PROPRIETARY INFORMATION.
7.1 CONFIDENTIAL AND PROPRIETARY INFORMATION. Executive hereby
acknowledges that, currently or as soon as possible after the signing of this
Agreement, Executive will enter into Parent's standard form of Employee
Proprietary Information and Inventions Agreement, a form of which is attached
hereto as Exhibit D.
8. GENERAL.
8.1 INDEMNIFICATION. The Parent agrees that it will enter into an
indemnification agreement with Executive consistent with that entered into
between the Parent and other of Parent's executive officers, and the parties
agree that such agreement shall cover the entire Term of this Agreement and
Executive's services provided to the Parent pursuant hereto.
8.2 ENTIRE AGREEMENT. Effective as of the Closing Date, this
Agreement shall supersede the Prior Agreement, and sets forth the complete,
final and exclusive embodiment of the entire agreement between Executive and the
Parent, and supersedes all prior agreements or understandings between the
parties, with respect to the subject matter hereof. This Agreement is entered
into without reliance upon any promise, warranty or representation, written or
oral, other than those expressly contained herein, and it supersedes any other
such promises, warranties, representations or agreements. This Agreement may not
be amended or modified except in a written instrument signed by Executive and a
duly authorized officer or director of the Parent.
8.3 SEVERABILITY. If a court of competent jurisdiction determines
that any term or provision of this Agreement is invalid or unenforceable, then
the remaining terms and provisions shall be unimpaired. Such court shall have
the authority to modify or replace the invalid or unenforceable term or
provision with a valid and enforceable term or provision which most accurately
represents the parties' intention with respect to the invalid or unenforceable
term or provision.
8.4 SUCCESSORS AND ASSIGNS. This Agreement shall bind the heirs,
personal representatives, successors, assigns, executors and administrators of
each party, and inure to the benefit of each party, its heirs, successors and
assigns. However, because of the unique and personal nature of Executive's
duties under this Agreement, Executive may not delegate the performance of his
duties under this Agreement.
8.5 APPLICABLE LAW. This Agreement shall be deemed to have been
entered into and shall be construed and enforced in accordance with the laws of
the State of California as applied to contracts made and to be performed
entirely within California.
8.6 HEADINGS. The section headings contained herein are for
reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement.
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8.7 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, all of which together
shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties have duly authorized and caused this
Agreement to be executed as follows:
XXXXXX X. XXXXXXX, PLATINUM SOFTWARE CORPORATION,
an Individual a Delaware corporation
/s/ Xxxxxx X. Xxxxxxx
---------------------------------- By: /s/ L. Xxxxxx Xxxxx
---------------------------------
Name: L. Xxxxxx Xxxxx
-------------------------------
Title:
------------------------------
The Company hereby acknowledges and agrees to the provisions of
Sections 2, 4.5 and 8.2 hereof.
DATAWORKS CORPORATION,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxx
-----------------------------
Title:
----------------------------
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EXHIBIT A
PLATINUM EXECUTIVE BONUS PLAN
EMPLOYEE NAME TITLE CLOSING DATE DATE PREPARED REVISION #
------------- ----- ------------ ------------- ----------
Xxxxxx X. Xxxxxxx Vice Chairman As defined in Xxxxxxx Executive
Employment Agreement
AUTHORITY AND RESPONSIBILITY
Vice Chairman, Platinum Software Corporation
FY1999 ASSIGNMENT
($ MILLIONS) QTR 1 QTR 2 QTR 3 QTR 4 TOTAL
------------ ----- ----- ----- ----- -----
A) Revenue XXX XXX XXX XXX TBD
B) Net Income XXX XXX XXX XXX TBD
INCENTIVE COMPENSATION
INCENTIVE AT 100% OF TARGET
LEVEL I Bonus Revenue $4,500 per % point 76% - 100% $112,500
LEVEL I Bonus Net Income $4,500 per % point 76% - 100% 112,500
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TOTAL FOR 100% PORTION $225,000
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INCENTIVE ABOVE 100% OF TARGET
LEVEL II Bonus Revenue $22,500 per % point 101% - 105% $112,500
LEVEL II Bonus Net Income $4,500 per % point 101% - 125% $112,500
LEVEL II Bonus Backlog $22,500 per million 106% - 110% $112,500
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TOTAL FOR ABOVE 100% $337,500
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TOTAL AT CAP $562,500
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COMMENTS
a) Payment of incentives beyond the above CAP can be achieved with approval of
the Board of Directors.
b) All bonuses will be earned on a pro-rata basis, but not paid until the end
of the fiscal year.
c) Backlog is defined as revenue which could have been recognized which was
held for the subsequent quarter. Backlog should be included in the net
income calculation and is used in the annual revenue calculation.
d) During the Consulting Period, Executive shall in any event be entitled to
the maximum amount of the "INCENTIVE at 100% of TARGET," without
consideration of whether projected revenue and net income are actually met
during a fiscal year.
e) This Exhibit A shall be amended for each new fiscal year during the Term,
in accordance with amendments generally applicable to Parent's executive
officers.
Approved Approved
Xxxxxx X. Xxxxxxx Date Platinum Software Corporation Compensation Date
Committee
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EXHIBIT B
FORM OF NONQUALIFIED OPTION AGREEMENT
THIS NONQUALIFIED OPTION AGREEMENT (the "Agreement"), made as of the
[Agreement_Date], between PLATINUM SOFTWARE CORPORATION, a Delaware
corporation (hereinafter referred to as the "Company"), and [FName] [LName],
an employee of the Company, its parent or one or more of its subsidiaries (the
"Optionee"), is made with reference to the following facts:
R E C I T A L S
A. Optionee is employed with the Company or a consultant to the Company
and is a valued and key employee of or a consultant to the Company.
B. The Company desires, by affording the Optionee an opportunity to
purchase shares of Common Stock of the Company (hereinafter called "Shares"), as
hereinafter provided, to carry out the purpose of the Nonqualified Stock Option
Plan - 1998, a copy of which is attached hereto or available from the Secretary
of the Company (the "Plan").
NOW, THEREFORE, IN CONSIDERATION of the mutual covenants hereinafter set
forth, and for good and valuable consideration, the parties hereto have agreed,
and do hereby agree, as follows:
1. GRANT OF OPTION.
The Company hereby irrevocably grants to the Optionee the right and
option (hereinafter called the "Option") to purchase all or any part of an
aggregate of [Options] Shares (such number being subject to adjustment as
provided in Paragraph 7 hereof) on the terms and conditions herein set forth.
The Option granted herein is a "nonqualified option" and is not subject to the
provisions of Section 422A of the Internal Revenue Code of 1986, as amended.
2. PURCHASE PRICE.
The purchase price of the Shares covered by the Option shall be
$[Grant_Price] per share (the "Exercise Price"), representing one hundred
percent (100%) of the fair market value of the shares as determined pursuant to
Section 5 of the Plan as of the date hereof.
3. TERM OF OPTION.
The term of the Option shall commence on the date hereof and all rights
to purchase shares hereunder shall cease at 11:59 p.m. on the day before the
tenth (10th) anniversary of the date hereof, subject to earlier termination as
provided herein. Except as may otherwise be provided in this Agreement, options
granted hereunder may be cumulative and exercised as follows:
(i) From and after [Grant_Date] (the "Vesting Commencement Date") and
until one year from the Vesting Commencement Date, the Option may not be
exercised as to any of the Shares subject to the Option.
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(ii) During the period commencing one year from the Vesting Commencement
Date, the Option may be exercised for one-fourth (1/4) of the Shares subject to
the Option, and, thereafter, on each succeeding anniversary of the Vesting
Commencement Date, the Option may be exercised for an additional one-fourth
(1/4) of the Shares subject to the Option, such that on and after four (4) years
from the Vesting Commencement Date, the Option may be exercised as to all of the
Shares subject to the Option.
The purchase price of the Shares as to which the Option shall be
exercised shall be paid in full at the time of exercise, as provided in
Paragraph 9 below. Except as provided in Paragraph 5 hereof, the Option may not
be exercised at any time unless the Optionee shall have been continuously, from
the date hereof to the date of the exercise of the Option, a Service Provider to
the Company. The holder of the Option shall not have any of the rights of a
shareholder with respect to the Shares covered by the Option as to any Shares of
Common Stock not actually issued and delivered to Optionee.
4. NONTRANSFERABILITY.
The Option shall not be transferable other than by will or the laws of
descent and distribution or with the prior written consent of the Plan
Administrator, and the Option may be exercised, during the lifetime of the
Optionee, only by Optionee. More particularly (but without limiting the
generality of the foregoing), the Option may not be assigned, transferred
(except as provided in Paragraph 6 hereof), pledged or hypothecated in any way,
shall not be assignable by operation of law and shall not be subject to
execution, attachment or similar process. Any attempted assignment, transfer,
pledge, hypothecation or other disposition of the Option contrary to the
provisions hereof, and the levy of any execution, attachment or similar process
upon the Option, shall be null and void and without effect.
5. TERMINATION OF OPTION.
Except as provided below in this Section, this Option shall terminate on
the date Optionee ceases to be a Service Provider for the Company (the
"Termination Date"). Optionee shall be considered to be a Service Provider to
the Company for all purposes under this Agreement if the Board of Directors or
Administrator of the Plan determines that Optionee is rendering or available to
render substantial services as a part-time employee, consultant, contractor or
advisor to the Company or any Parent, Subsidiary or Affiliate of the Company. A
leave of absence (regardless of the reason therefor) shall be deemed to
constitute the cessation of Service Provider status as of the commencement date
of the leave, unless such leave is authorized by the Company in writing and the
Optionee recommences providing services prior to the expiration date of such
leave. Accordingly, the Optionee shall receive credit as a Service Provider to
the Company during a leave of absence only if the leave is authorized by the
Company and the Optionee recommences providing services on or prior to the
expiration date of the leave.
(a) TERMINATION GENERALLY. In the event Optionee ceases to be a Service
Provider to the Company for any reason except death or disability, this Option,
to the extent (and only to the extent) that it would have been exercisable by
Optionee on the Termination Date, may be exercised by Optionee within three (3)
months after the Termination Date, but in no event later than the Expiration
Date.
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(b) DEATH OR DISABILITY. In the event Optionee ceases to be a Service
Provider to the Company because of the death of Optionee or the disability of
Optionee within the meaning of Section 22(e)(3) of the Code, this Option, to the
extent (and only to the extent) that it would have been exercisable by Optionee
on the Termination Date, may be exercised by Optionee (or Optionee's legal
representative) within one year after the Termination Date, but in no event
later than the Expiration Date.
6. OTHER TERMINATIONS OR EXPIRATIONS.
(a) In addition to any other event causing an expiration or termination
of this Option, this Option shall expire and all rights to purchase Shares shall
cease (to the extent not theretofore terminated or expired as herein provided)
upon the effective date of a Change of Control. To the extent applicable, based
upon the event causing a Change of Control, the Company shall give written
notice to the Optionee of the proposed Change of Control not less than thirty
(30) days prior to the anticipated effective date of the Change of Control. The
Option shall be accelerated and, concurrent with the effective date of the
Change of Control, the Optionee shall have the right to either (i) exercise the
Option in respect to any or all of the Shares then subject thereto, or (ii)
exchange this Option for cash in an amount equal to the number of Shares which
as of the effective date of the Change of Control may be acquired upon the
exercise of the Option, multiplied by the difference between (1) the fair market
value of the consideration to be paid per Share in connection with the Change of
Control as determined by the Board of Directors, which determination shall be
final and binding on Optionee, and (2) The Exercise Price. Such cash payment
shall be paid within thirty (30) days following the consummation of the Change
of Control. Neither the approval of the Board or the Committee shall be required
in connection with such election and the cash distribution.
(b) For the purposes of this Agreement, the term "Change of Control"
shall mean the occurrence of any of the following:
(i) Any "person," as such term is used in Section 13(d) and 14(d)
of the Securities Exchange Act of 1934, as amended (the "Exchange Act") (other
than the Company, a Company subsidiary, or a Company employee benefit plan,
including any trustee of such plan acting as trustee) is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly
or indirectly, of securities of the Company (or a successor to the Company)
representing fifty percent (50%) or more of the combined voting power of the
then outstanding securities of the Company or such successor; or
(ii) At least a majority of the directors of the Company
constitute persons who were not at the time of their first election to the
Board, candidates proposed by a majority of the Board of Directors in office
prior to the time of such first election; or
(iii) A merger or consolidation in which the Company is not the
surviving entity, except for a transaction, the principal purpose of which is to
change the state in which the Company is incorporated; or
(iv) A sale, transfer or other disposition of assets involving
fifty percent (50%) or more in value of the assets of the Company; or
(v) The dissolution of the Company, or liquidation of more than
fifty percent (50%) in value of the Company; or
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(vi) Any reverse merger in which the Company is a surviving
entity but in which securities possessing more than fifty percent (50%) of the
total combined voting power of the Company's outstanding securities are
transferred to a person or persons different from the persons holding those
securities immediately prior to such reverse merger.
7. ADJUSTMENTS.
The number and class of shares subject to this Option, and the purchase
price per share (but not the total purchase price), and the minimum number of
shares as to which this Option may be exercised at any one time, shall all be
proportionately adjusted in the event of any change or increase or decrease in
the number of issued shares of Common Stock in the Company, without receipt of
consideration by the Company, which result from a split-up or consolidation of
shares, payment of a share dividend (in excess of two percent (2%)), a
recapitalization, combination of shares or other like capital adjustment, so
that, upon exercise of this Option, the Optionee shall receive the number and
class of shares Optionee would have received had Optionee been the holder of the
number of shares of Common Stock in the Company, for which this Option is being
exercised, on the date of such change or increase or decrease in the number of
issued shares of Common Stock in the Company. Adjustments under this paragraph
shall be made by the Board of Directors whose determination with respect thereto
shall be final and conclusive. No fractional share shall be issued under this
Option or upon any such adjustment.
8. NOTICE.
All notices, requests, consents and other communications hereunder shall
be in writing and shall be deemed to have been duly given if delivered or
mailed, by United States certified or registered mail, prepaid, to the parties
or their assignees at the addresses set forth opposite their signatures below
(or such other address as shall be given in writing by either party to the
other).
9. METHOD OF EXERCISING OPTION.
Subject to the terms and conditions of this Option Agreement, this
Option may be exercised by written notice to the Company, at its principal
office in the State of California, which presently is located at 000 Xxxxxxxxxx
Xxxxx, Xxxxxx, Xxxxxxxxxx 00000-0000. Such notice shall state the election to
exercise the Option and the number of shares in respect of which it is being
exercised and shall be signed by the person or persons so exercising the Option.
Such notice shall be accompanied by payment in (i) cash, certified check, bank
draft; (ii) (subject to the limitations and with the prior approval required
under Paragraph 3 above) certificates for shares of the Common Stock of the
Company; or (iii) (subject to the limitations and with the terms and provisions
specified pursuant to Paragraph 3 above) with the prior written consent and
approval of the Company, by the execution and delivery of Optionee's promissory
note in the principal amount of the exercise price, with such term, interest
rate and other terms and provisions, including, without limitation, requiring
the Shares acquired upon exercise to be pledged to the Company to secure payment
of the note, as the Board of Directors may specify, equal to at the time of
exercise, in the aggregate, the full purchase price of such shares, (iv) by
cancellation of indebtedness of the Company to Optionee, (v) by waiver of
compensation due or accrued to Optionee for services rendered, (vi) provided
that a public market for the Company's stock exists, through a "same day sale"
commitment from the Optionee and a broker-dealer that is a member of the
National Association of Securities Dealers (an "NASD" Dealer) whereby the
Optionee irrevocably elects to exercise his Option and to sell a portion of the
Shares so purchased to pay for the exercise price and whereby the NASD Dealer
irrevocably commits upon receipt of such Shares to forward the exercise price
directly to the Company, (vii) provided that a public market for the Company's
stock exists, through a "margin" commitment from the Optionee and NASD Dealer
whereby the Optionee irrevocably elects to exercise this Option and to pledge
the Shares so
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purchased to the NASD Dealer in a margin account as security for a
loan from the NASD Dealer in the amount of the exercise price, and whereby the
NASD Dealer irrevocably commits upon receipt of such Shares to forward the
exercise price directly to the Company, or (viii) any combination of (i), (ii),
(iii), (iv), (v), (vi) or (vii) above, and the Company shall deliver a
certificate or certificates representing the Shares subject to such exercise as
soon as practicable after the notice shall be received. The certificate or
certificates for the shares as to which the Option shall have been so exercised
shall be registered in the name of the person or persons so exercising the
Option and shall be delivered as provided above to or upon the written order of
the person or persons exercising the Option. In the event the Option shall be
exercised by any person or persons other than the Optionee in accordance with
the terms hereof, such notice shall be accompanied by appropriate proof of the
right of such person or persons to exercise the Option. All shares that shall be
purchased upon the exercise of the Option as provided herein shall be fully paid
and nonassessable. The holder of this Option shall not be entitled to the
privileges of share ownership as to any shares of Common Stock not actually
issued and delivered to Optionee. Until and unless the Plan and the issuance of
securities thereunder shall have been registered under the Securities Act of
1933, as amended (the "Securities Act"), the Optionee hereby certifies that all
shares of Common Stock in the Company purchased or to be purchased by Optionee
pursuant to the exercise of this Option are being or are to be acquired by
Optionee for investment and not with a view to the distribution thereof.
10. NO AGREEMENT TO EMPLOY.
Nothing in this Agreement shall be construed to constitute or be
evidence of any agreement or understanding, express or implied, on the part of
the Company to employ or retain Optionee for any specific period of time.
11. MARKET STANDOFF AGREEMENT.
Optionee agrees in connection with any underwritten registration of the
Company's securities that, upon the request of the Company or the underwriters
managing any public offering of the Company's securities, Optionee will not sell
or otherwise dispose of any Shares without the prior written consent of the
Company or such underwriters, as the case may be, for a period of time (not to
exceed 90 days) from the effective date of such registration as the Company or
the underwriters may specify.
12. STOP-TRANSFER NOTICES.
Optionee understands and agrees that, in order to ensure compliance with
the restrictions referred to herein, the Company may issue appropriate
"stop-transfer" instructions to its transfer agent, if any, and that, if the
Company transfers its own securities, it may make appropriate notations to the
same effect in its own records.
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13. GENERAL.
The Company shall at all times during the term of the Option reserve and
keep available such number of shares of Common Stock as will be sufficient to
satisfy the requirements of this Option Agreement, shall pay all original issue
and transfer taxes with respect to the issue and transfer of shares pursuant
hereto and all other fees and expenses necessarily incurred by the Company in
connection therewith, and will from time to time use its best efforts to comply
with all laws and regulations, which, in the opinion of counsel for the Company,
shall be applicable thereto.
IN WITNESS WHEREOF, the Company has caused this Nonqualified Option
Agreement to be duly executed by its officers thereunto duly authorized, and the
Optionee has hereunto set his hand, all as of the day and year first above
written.
COMPANY:
PLATINUM SOFTWARE CORPORATION
Address:
000 Xxxxxxxxxx Xxxxx
Xxxxxx, XX 00000-0000 By:
---------------------------------
OPTIONEE:
Address:
--------------------------
--------------------------
------------------------------------
[FName] [LName]
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EXHIBIT C
RELEASE AND WAIVER OF CLAIMS
In exchange for consideration described in my Executive Employment
Agreement, and subject to continuing obligations to me pursuant to Sections 4, 5
and 9.1 thereof, I hereby furnish Platinum Software Corporation (the "Parent")
with the following release and waiver:
I hereby release, and forever discharge the Parent, its officers,
directors, agents, employees, stockholders, successors, assigns and affiliates,
of and from any and all claims, liabilities, demands, causes of action, costs,
expenses, attorneys' fees, damages, indemnities and obligations of every kind
and nature, in law, equity, or otherwise, known and unknown, suspected and
unsuspected, disclosed and undisclosed, arising at any time prior to and
including the date eight days prior to the execution date of this Release with
respect to any claims relating to my employment and the termination of my
employment, including but not limited to, claims pursuant to any federal, state
or local law relating to employment, including, but not limited to,
discrimination claims, claims under the federal Age Discrimination in Employment
Act of 1967, as amended ("ADEA"), or claims for wrongful termination, breach of
the covenant of good faith, contract claims, tort claims, and wage or benefit
claims, including but not limited to, claims for salary, bonuses, commissions,
stock, stock options, vacation pay, fringe benefits, severance pay or any form
of compensation, and excluding claims relating to consulting services described
in Section 5.6 of my Executive Agreement.
I also acknowledge that I have read and understand Section 1542 of the
California Civil Code which reads as follows: "A GENERAL RELEASE DOES NOT EXTEND
TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT
THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY
AFFECTED HIS SETTLEMENT WITH THE DEBTOR." I hereby expressly waive and
relinquish all rights and benefits under that section and any law of California
or any other jurisdiction of similar effect with respect to any claims I may
have against the Parent.
I acknowledge that, among other rights, I am waiving and releasing any
rights I may have under ADEA, that this waiver and release is knowing and
voluntary, and that the consideration given for this waiver and release is in
addition to anything of value to which I was already entitled as an employee of
the Parent. I further acknowledge that I have been advised, as required by the
Older Workers Benefit Protection Act, that: (a) the waiver and release granted
herein does not relate to claims which may arise after this agreement is
executed; (b) I have the right to consult with an attorney prior to executing
this agreement (although I may choose voluntarily not to do so); (c) I have
twenty-one (21) days from the date I receive this agreement, in which to
consider this agreement (although I may choose voluntarily to execute this
agreement earlier); (d) I have seven (7) days following the execution of this
agreement to revoke my consent to the agreement; and (e) this agreement shall
not be effective until the seven (7) day revocation period has expired.
This release and waiver, the Executive Employment Agreement, the
Noncompetition Agreement and any option agreements between Executive and Parent
represent the entire agreement and understanding between Parent and Executive
concerning the subject matter hereof
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and supersede and replace any and all prior agreements and understandings,
whether written or oral, concerning the subject matter hereof.
Date: __________________ By:_________________________________
Xxxxxx X. Xxxxxxx
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EXHIBIT D
PLATINUM SOFTWARE CORPORATION
EMPLOYEE PROPRIETARY INFORMATION AGREEMENT
In consideration and as a condition of my employment, or continued
employment, by PLATINUM SOFTWARE CORPORATION and/or by companies which it owns,
controls, or is affiliated with, or their successors in business (hereafter
referred to as "the Company"), and the compensation paid therefore:
1. CONFIDENTIALITY.
I agree to keep confidential, except as the Company may otherwise consent in
writing and not to disclose or make any use of except for the benefit of the
Company, at any time, either during or subsequent to my employment, any trade
secrets, confidential information, knowledge, data or other information of the
Company relating to products, processes, know-how, designs, formulas, test data,
customer lists, business plans, marketing plans and strategies, pricing
strategies or other subject matter pertaining to any business of the Company or
any of its clients, customers, consultants, licensees or affiliates, which I may
produce, obtain or otherwise acquire during the course of my employment, except
as herein provided. I further agree not to deliver, reproduce or in any way
allow any such trade secrets, confidential information, knowledge, data or other
information, or any documentation relating thereto, to be delivered or used by
any third parties without specific direction or consent of a duly authorized
representative of the Company.
2. CONFLICTING EMPLOYMENT/RETURN OF CONFIDENTIAL MATERIAL.
I agree that during my employment with the Company I will not engage in any
other employment, occupation, consulting or other activity relating to the
business in which the Company is now or may hereafter become engaged or which
would otherwise conflict with my obligations to the Company. In the event of my
termination of employment with the Company for any reason whatsoever, I agree to
promptly surrender and deliver to the Company all records, materials, equipment,
drawings, documents and data of any nature pertaining to any invention, trade
secret or confidential information of the Company or to my employment, and I
will not take with me any description containing or pertaining to any
confidential information, knowledge or data of the Company which I may produce
or obtain during the course of my employment. In the event of the termination of
my employment for any reason whatsoever, I agree to sign and deliver the
"Termination Certificate" attached hereto as Exhibit A.
3. ASSIGNMENT OF INVENTIONS.
I agree that all computer programs, documentation and other copyrightable
materials to which I contribute during my employment shall be considered "works
made for hire" and shall be the sole property of the Company. I hereby assign
and transfer to the Company my entire right, title and interest in and to all
inventions (as used in the Agreement, "inventions" shall include but not be
limited to ideas, improvements, designs and discoveries) whether or not
patentable and whether or not reduced to practice, made or conceived by me
(whether made solely by me or jointly with others) during the period of my
employment with the Company, which relate in any manner to the actual or
demonstrably anticipated business, work or research and development of the
Company or its subsidiaries, or result from or are suggested by any task
assigned to me or any work performed by me for or on behalf of the Company or
its subsidiaries. I agree that all such inventions are the sole property of the
Company provided, however, that this Agreement does not require assignment of an
invention which qualifies fully for protection under Section 2870 of the
California Labor Code (hereafter referred to as "Section 2870"). A copy of
Section 2870 is attached as Exhibit B.
4. DISCLOSURE OF INVENTIONS AND PATENTS.
I agree that in connection with any "invention" as defined in Paragraph 3
above:
a) I will disclose such invention promptly in writing to my immediate
superior at the Company, with a copy to the President, regardless of
whether I believe the invention is protected by Section 2870, in order to
permit the Company to claim rights to which it may be entitled under this
Agreement. Such disclosure shall be received in confidence by the Company.
b) I will, at the Company's request, promptly execute a written assignment of
title to the Company for any invention required to be assigned by
Paragraph 3 ("assignable invention"), and I will preserve any such
assignable invention as confidential information of the Company.
c) Upon request, I agree to assist the Company or its nominee (at its
expense) during and at any time subsequent to my employment in every
reasonable way to obtain for its own benefit patents and copyrights for
such assignable inventions in any and all countries, which inventions
shall be and remain the sole and exclusive property of the Company or its
nominee whether or not patented or copyrighted. I agree to execute such
papers and perform such lawful acts as the Company deems to be necessary
to allow it to exercise all right, title, and interest in such patents and
copyrights.
5. EXECUTION OF DOCUMENTS.
In connection with Paragraph 4(c), I further agree to execute, acknowledge
and deliver to the Company or its nominee upon request and at its expense all
such documents, including applications for patents and copyrights and
assignments of inventions, patents and copyrights to be issued therefore, as the
Company may determine necessary or desirable to apply for and obtain letters,
patents and copyrights on such assignable inventions in any and all countries
and/or to protect the interest of the Company or its nominee in such inventions,
patents and copyrights, and to vest title thereto in the Company or its nominee.
6. MAINTENANCE OF RECORDS.
I agree to keep and maintain adequate and current written records of all
inventions made by me (in the form of notes, sketches, drawings and as may be
specified by the Company),
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which records shall be available to and remain the sole property of the Company
at all times.
7. PRIOR INVENTIONS.
It is understood that all inventions if any, patented or unpatented, which I
made prior to my employment by the Company are excluded from the scope of this
Agreement. To preclude any possible uncertainty, I have set forth on Exhibit C
attached hereto a complete list of all my prior inventions, including numbers of
all patents and patent applications, and a brief description of all unpatented
inventions which are not the property of a previous employer. I represent and
covenant that the list is complete and that, if no items are on the list, I have
no such prior inventions. I agree to notify the Company in writing before I make
any disclosure or perform any work on behalf of the Company which appears to
threaten or conflict with proprietary rights I claim in any invention or idea.
In the event of my failure to give such notice, I agree that I will make no
claim against the Company with respect to any such inventions or ideas.
8. OTHER OBLIGATIONS.
I acknowledge that the Company from time to time may have agreements with
other persons or with the U.S. Government or governments of other countries, or
agencies thereof, which impose obligations or restrictions on the Company
regarding inventions made during the course of work thereunder or regarding the
confidential nature of such work. I agree to be bound by all such obligations
and restrictions and to take all action necessary to discharge the obligations
of the Company thereunder.
9. TRADE SECRETS OF OTHERS.
I represent that my performance of all the terms of this Agreement and as an
employee of the Company does not and will not breach any agreement to keep in
confidence proprietary information, knowledge or data acquired by me in
confidence or in trust prior to my employment with the Company, and I will not
disclose to the Company or induce the Company to use any confidential or
proprietary information or material belonging to any previous employer or
others. I agree not to enter into any agreement either written or oral in
conflict herewith.
10. MODIFICATION.
This Agreement may not be changed, modified, released, discharged, abandoned
or otherwise amended, in whole or in part, except by an instrument in writing,
signed by me and the Company. I agree that any subsequent change or changes in
my duties, salary, or compensation shall not affect the validity or scope of
this Agreement.
11. ENTIRE AGREEMENT.
I acknowledge receipt of this Agreement and agree that with respect to the
subject matter thereof it is my entire agreement with the Company, superseding
any previous oral or written communications, representations, understandings or
agreements with the Company or any officers or representative thereof.
12. SEVERABILITY.
In the event that any paragraph or provision of this Agreement shall be held
to be illegal or unenforceable in any jurisdiction, such paragraph or provision
shall, as to that jurisdiction, be adjusted and reformed, if possible, in order
to achieve the intent of the parties, and if such paragraph or provision cannot
be adjusted and reformed, such paragraph or provision shall, for the purposes of
that jurisdiction be voided and severed from this Agreement, and the entire
Agreement shall not fail on account thereof but shall otherwise remain in full
force and effect.
13. SUCCESSORS AND ASSIGNS.
This Agreement shall be binding upon my heirs, executors, administrators or
other legal representative and is for the benefit of the Company, its successors
and assigns.
14. GOVERNING LAW.
This Agreement shall be governed by the laws of the location of the
Company's corporate headquarters, which is presently located in the State of
California; provided, however, that in the event this provision is deemed to be
unenforceable by a local judicial authority or governmental agency, then the
laws of the location of my employment shall apply.
15. COUNTERPARTS.
This Agreement may be signed in two counterparts, each shall be deemed an
original and both of which shall together constitute one agreement.
EMPLOYEE PLATINUM SOFTWARE CORPORATION
-------------------------- By:
(Employee's Signature) --------------------------
-------------------------- Its:
(Print Name) -------------------------
Date: Date:
-------------------- ------------------------
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EXHIBIT A
TERMINATION CERTIFICATE
This is to certify that I do not have in my possession, nor have I failed to
return any records, documents, data, specifications, drawings, blueprints,
reproductions, sketches, notes, reports, proposals, or copies of them, or other
documents or materials, equipment, or other property belonging to the Company,
its successors and assigns (hereafter referred to as "the Company").
I further certify that I have complied with and will continue to comply with
all the terms of the Employee Proprietary Information Agreement signed by me
with the Company, including the reporting of any inventions (as defined therein)
conceived or made by me covered by the Agreement.
I further agree that in compliance with the Employee Proprietary and
Confidential Information Agreement, I will preserve as confidential all trade
secrets, confidential information, knowledge, data, or other information
relating to products, processes, know-how, designs, formulas, test data,
customer lists, or other subject matter pertaining to any business of the
Company or any of its clients, customers, consultants, licensees, or affiliates.
---------------------------
Employee's Signature
---------------------------
Print Name
---------------------------
Date
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EXHIBIT B
SECTION 2870
CALIFORNIA LABOR CODE
Any provision in an employment agreement which provides that an employee
shall assign or offer to assign any of his or her rights in an invention to his
or her employer shall not apply to an invention for which no equipment,
supplies, facility, or trade secret information of the employer was used, and
which was developed entirely on the employee's own, time, and:
a) which does not relate to the business of the employer or to the
employer's actual or demonstrably anticipated research or development
or
b) which does not result from any work performed by the employee for the
employer.
Any provision which purports to apply to such an invention is to that extent
against the public policy of this state and is to that extent void and
unenforceable.
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EXHIBIT C
LIST OF PRIOR INVENTIONS
Identifying Number or
Title Date Brief Description
----- ---- ---------------------
5
